Tomar v Tomar
[2021] NZHC 2353
•10 September 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-815
CIV-2020-404-976 [2021] NZHC 2353
BETWEEN VIN TOMAR
Appellant
AND
MONIKA TOMAR
Respondent
Hearing: 1 September 2021 Appearances:
Appellant in person
K L Hoult for Respondent
Judgment:
10 September 2021
JUDGMENT OF LANG J
This judgment was delivered by me on 10 September 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors:
Niemand Peebles Hoult, Hamilton
TOMAR v TOMAR [2021] NZHC 2353 [10 September 2021]
[1] Mr Tomar appeals against two decisions made in the Family Court determining aspects of a relationship property dispute between himself and his former wife. In CIV-2020-404-815 (the first appeal) Mr Tomar appeals against a substantive judgment delivered by Judge D A Burns on 22 May 2020 (the first decision).1 In CIV-2021-404- 976 (the second appeal) Mr Tomar appeals against a decision delivered subsequently by the same Judge on 20 May 2021 (the second decision).2 In this decision the Judge dismissed several interlocutory applications Mr Tomar had filed following delivery of the first decision.
Preliminary issues
Payment of security for costs on the second appeal
[2] Mr Tomar paid security for costs as directed in CIV-2020-404-815. He did not provide security in CIV-2021-404-976. Section 126(1) of the District Court Act 2016 provides that an appellant may be required under the High Court Rules 2016 to give the Registrar of the High Court security for costs. Section 126(3) provides that where security for costs is not given within the time required by the High Court Rules the appeal is abandoned. An issue therefore arises as to whether the second appeal has been abandoned for non-payment of security for costs.
[3] Ms Hoult points out on Ms Tomar’s behalf that both appeals were the subject of a case management conference before Powell J on 22 June 2021. In a memorandum filed in anticipation of that conference she asked the Judge to require Mr Tomar to pay security for costs in the sum of $1,195 for the second appeal. Unfortunately, however, the minute issued by Powell J on 24 June 2021 did not mention the issue of security. As a result, Mr Tomar has never been directed to provide security for costs on the second appeal. It follows that the appeal against the second decision has not been abandoned as would have been the case if Mr Tomar had failed to provide security for costs as directed by the Court.
1 Tomar v Tomar [2020] NZFC 2960 (the first appeal).
2 Tomar v Tomar [2021] NZFC 4666.
Application to adduce further evidence on appeal
[4] Shortly before the hearing Mr Tomar filed an application seeking leave to adduce further evidence. Ms Hoult suggested that most, if not all, of this material was irrelevant to the issues raised by the appeals. Ultimately, however, she did not oppose the admission of the new material and effectively abided the Court’s decision on the application. I advised Mr Tomar that I would receive the new material to the extent that it assisted me to determine the issues raised by the appeals. As it transpires, however, I have not found it necessary to refer to any of the new material in determining the appeals.
A The first appeal Procedural background
[5] In order to explain the approach I propose to adopt in relation to the first appeal it is necessary to set out the procedural pathway it followed leading up to the hearing before me.
[6] Mr Tomar filed his original notice of appeal against the first decision on 3 June 2020. He then applied for leave to adduce further evidence. This was heard by Powell J on 9 September 2020. After commencing the hearing the Judge concluded Mr Tomar’s application was so defective that it should be dismissed. However, he gave Mr Tomar leave to file a fresh application provided it complied with requirements he imposed in a minute issued on the same date.
[7] Powell J heard Mr Tomar’s amended application to adduce further evidence on 20 October 2020 and dismissed it in a judgment delivered on 31 March 2021.3 The Judge subsequently issued timetable directions to enable the appeal to be heard on 25 May 2021.
[8] Mr Tomar then filed amended notices of appeal on 5 April, 12 April and 14 April 2021.
3 Tomar v Tomar [2020] NZHC 690.
[9] The appeal duly came on for hearing before Gordon J on 25 May 2021. Ms Hoult had filed submissions prior to the hearing responding to the issues raised in the amended notice of appeal filed on 14 April 2021.
[10] By this stage Mr Tomar was representing himself, having earlier dispensed with the services of his counsel. After the hearing commenced the Judge granted an application by Mr Tomar for an adjournment of the appeal. This flowed from the fact that the amended notice of appeal filed on 14 April 2021 challenged only the lawfulness of the Judge issuing his decision on 22 May 2020 before Mr Tomar had filed his closing submissions. It did not challenge any of the substantive conclusions and orders the Judge had made in the first decision.
[11]In a minute issued on 25 May 2021 Gordon J observed:
[8] It does seem there may be merit in Mr Tomar’s position that the extended period for the filing of submissions had not yet expired when the Judge issued his decision on 22 May 2020. However I specifically record that I make this observation based on the material In Mr Tomar’s bundle. That material may not be complete. Further, I have not heard submissions from counsel on the issue.
[9] However, even if that is the case, that is not the end of the matter, as I have explained to Mr Tomar. Mr Tomar would still need to demonstrate some consequential prejudice to him. He would need to persuade this Court that he had a reasonable argument, based on the evidence before the Family Court, which the Judge did not take into account or that there were relevant factual matters which the Judge overlooked.
[10] I have explained to Mr Tomar that an appeal in this Court proceeds by way of a rehearing. In other words this Court must form its own independent judgment of the merits of the appeal. The onus or burden of persuading this Court to reach a different conclusion from the Court below, is on the appellant. In discharging that onus, Mr Tomar must identify the respects in which the judgment under appeal is in error. If this Court’s conclusion is different from the conclusion of the Court below, then the appeal must be allowed.
[11] Mr Tomar’s written submissions do not address the merits or substance of the decision of the Family Court Judge. They focus solely on the alleged illegality (the Judge giving his decision before the extended date for the filing of submissions). Given that the onus is on Mr Tomar to persuade this Court that the Judge’s decision was wrong in one or more respects, I am prepared to grant the adjournment so that Mr Tomar has the opportunity to file the necessary written submissions.
[12] Mr Tomar subsequently filed another amended notice of appeal on 16 June 2021. Ms Hoult then filed new submissions responding to the issues Mr Tomar raised in this notice of appeal. The appeal was set down for hearing on 26 August 2021.
[13] Other issues then arose. Mr Tomar filed three applications for judicial review challenging the procedure adopted in the Family Court. On 20 August 2021 Moore J dismissed an application by Mr Tomar for orders consolidating the present appeals with the judicial review proceedings. Moore J also declined an application by Mr Tomar for an order adjourning the hearing of the present appeals so they could be heard together with the judicial review proceedings. Mr Tomar immediately applied for leave to appeal against the decisions given by Moore J but the Judge declined the application.4 Mr Tomar then lodged an application for leave to appeal with the Court of Appeal. I adjourned the fixture on 26 August 2021 until 1 September 2021 to enable the Court of Appeal to consider Mr Tomar’s application for leave to appeal. The Court of Appeal declined to grant Mr Tomar leave to appeal in a decision delivered on 30 August 2021.5
[14] The events described in the previous paragraph are of no relevance for present purposes. However, the point to be taken from the earlier narrative is that Mr Tomar has now had ample opportunity to formulate the grounds he wishes to advance in his appeal against the first decision. Both Powell J and Gordon J gave him considerable latitude because he has chosen to represent himself. He must now, however, live with the consequences of that decision. One of the consequences is that he is bound by the grounds of appeal contained in his final amended notice of appeal. It would be unfair, and wrong in principle, to allow Mr Tomar to depart from them now in advancing his appeal. I therefore propose to determine only those grounds of appeal that are contained in his final amended notice of appeal.
[15] I will therefore adopt the same approach as Ms Hoult in responding to the points raised by Mr Tomar in that notice of appeal. This involves distillation of those points so that each can be the subject of a reasoned determination.
4 Tomar v Tomar HC Auckland CIV-2020-404-815, 24 August 2021.
5 Tomar v Tomar [2021] NZCA 419.
Summary of issues raised in the amended notice of appeal dated 16 June 2021
[16] I agree with Ms Hoult’s identification of the grounds of appeal contained in the amended notice of appeal dated 16 June 2021. They are as follows:
1.Procedural errors made in the Family Court.
2.The Judge failed to recognise that the marriage was one of short duration and this needed to be reflected in the division of relationship property.
3.The Judge failed to recognise that three properties were Mr Tomar’s separate property rather than relationship property.
4.The Judge failed to deal with an argument that Ms Tomar regularly disposed of money during the course of the relationship.
5.The Judge failed to undertake a just division of the chattels and motor vehicles owned by the parties at the end of the relationship.
6.The Judge failed to provide Mr Tomar with an interest in the residential property in which Ms Tomar is currently residing.
[17]I now deal with each of these issues in turn.
Procedural errors made in the Family Court
[18] Mr Tomar contends he has been the victim of a string of procedural errors made in the Family Court. He says these have resulted in the Family Court acting unlawfully and in an irregular and prejudicial manner towards him. He says this constitutes a systematic abuse of the Court’s process.
[19] I do not consider it necessary for present purposes to analyse the points raised under this ground of appeal in detail for two reasons. First, they constitute alleged failings by the Family Court and as such are likely to be determined in the judicial review proceedings. I say “likely to be” because I have not seen the files relating to
the judicial review proceedings. More importantly, however, the alleged errors are only relevant for present purposes if they resulted in the Judge making errors in the decisions he reached. This was the point Gordon J made in her Minute dated 25 May 2021 when she adjourned the initial hearing of the appeal against the first decision.
[20] As I understand the position Mr Tomar contends the Family Court committed three procedural errors:
(a)He was not served with Ms Tomar’s original application for orders under the Property (Relationships) Act 1976 (the Act) and did not receive a copy of the affidavit of service filed in the Family Court.
(b)He did not receive a copy of an order for discovery that Judge Burns made against him on 8 August 2018.
(c)The Judge issued his decision on 22 May 2020 before Mr Tomar had filed his closing submissions.
Service of the original application for orders under the Property (Relationships) Act 1976
[21] Ms Tomar filed her original application seeking orders for the division of property under the Act on or about 13 December 2017. Rule 35 of the Family Court Rules 2002 required Ms Tomar to serve this on Mr Tomar. Mr Tomar denies that he has ever been validly served with a copy of the application.
[22] The bundle of documents used at the hearing in the Family Court contains an affidavit of service dated 13 February 2018. This was sworn by a process server who deposed that he had served Ms Tomar’s application and supporting affidavits on Mr Tomar at the family home on 2 February 2018. He said he recognised Mr Tomar from a photograph he had been given and obtained confirmation from the person who answered the door that he was “Vin Tomar”. The process server also deposed that Mr Tomar “refused to take the documents by hand”. The process server then placed the documents on the ground in front of Mr Tomar and told him he had been “officially served”.
[23] Furthermore, in an affidavit affirmed on 27 February 2018 Mr Tomar stated that on 2 February 2018 he was served with his wife’s “false application” by a private investigator hired by his wife. He said this person “harassed me at early morning at 6 am on 02/02/2018.” He repeated these comments in another affirmation dated 1 October 2018. I consider these constitute acknowledgements by Mr Tomar that he had been served with the proceeding on the morning of 2 February 2018. Furthermore, Mr Tomar went on to participate fully in the proceeding that culminated in the judgments delivered in the Family Court. It is inconceivable that he did so without having received Ms Tomar’s initial application.
[24] I do not know whether Ms Tomar’s solicitors provided Mr Tomar or his then counsel with a copy of the affidavit of service. However, I am not aware of any general obligation to serve such a document on the party served. An affidavit of service is usually filed to provide the court with evidence that the proceeding has been served when the party served subsequently takes no steps. That was not the case here. Where a party takes steps to oppose a proceeding there is no practical need to provide that party with a copy of the affidavit of service because the party will be well aware that service has been effected.
[25] Furthermore, Mr Tomar has not pointed to any unfair prejudice arising out of the fact that Ms Tomar’s solicitors did not serve a copy of the affidavit of service upon him.
[26]This ground of appeal clearly has no merit.
Service of the order for discovery made on 8 August 2018
[27] This issue arises because, following a hearing on 8 August 2018, Judge Burns granted an application by Mr Tomar for orders requiring Ms Tomar to provide discovery of specified documents and an application by Ms Tomar for orders requiring Mr Tomar to provide copies of all his bank statements and other records of income he had earned during the marriage. Ms Tomar duly complied with the orders and provided the Court with copies of her bank statements. Mr Tomar did not.
[28] Mr Tomar did not attend the hearing on 8 August 2018 and alleges he was never served with a copy of the order requiring him to provide discovery of the financial records relating to his business, including his bank statements. Rule 206 of the Family Court Rules 2002 requires the Registrar of the Family Court to take all reasonable steps to serve a copy of any order made by the Court on the parties.
[29] Mr Tomar’s assertion that he never received a copy of the order made on 8 August 2018 needs to be viewed in light of the fact that he stated in an affirmation dated 24 September 2018 that “the order made on 08 August 2018 was based on misleading information filed by the applicant”. He echoed this again in an affirmation dated 1 October 2018 when he stated that “the Applicant has been making false and misleading applications in the Courts to obtain Orders in her favour”. These statements make it clear that Mr Tomar was aware the order had been made within a short time after 8 August 2018.
[30] The relevance of this issue is negated in any event because on 15 August 2019 Ms Tomar arranged for a notice to produce documents to be served on Mr Tomar. This required him to produce copies of the documents that he was required to discover under the order made on 8 August 2019. Mr Tomar failed to comply with this notice as well. I therefore consider it to be immaterial for present purposes whether Mr Tomar received a copy of the initial orders for discovery. At the very latest he knew he was required to provide the bank statements and other financial information once he received the notice to produce documents in August 2019. This ground of appeal fails as a result.
Delivery of decision before Mr Tomar had filed his closing submissions
[31] This issue arises because of the sequence of events that occurred following the hearing. The hearing proceeded on 20 March 2020 when Ms Tomar gave brief supplementary evidence and was then cross-examined at length by Mr Tomar. This was followed by Mr Tomar giving evidence and being cross-examined at length by Ms Hoult. The transcript of evidence records that the evidence concluded at 5.03 pm on 20 March 2020. The Judge then adjourned the hearing for both parties to file written closing submissions.
[32] On 24 March 2020 the country went into Level 4 lockdown. This resulted in both Ms Hoult and Mr Tomar seeking and obtaining extensions of time within which to file their closing submissions. Ms Hoult ultimately filed her closing submissions on or about 22 April 2020. Mr Tomar had not filed his closing submissions before the Judge delivered his decision on 22 May 2020.
[33] Mr Tomar contends that the Judge issued his decision before the time had expired for him to file his closing submissions. Resolution of this issue depends on the interpretation to be given to minutes the Judge issued granting Mr Tomar extensions of time within which to file his submissions. The Judge considered Mr Tomar was required to file his submissions no later than 6 May 2020, being 21 days after the expiry of the first extension he had given on 25 March 2020. Mr Tomar contends that he had until 21 days after the lockdown ended to file his submissions. That issue will, as I understand it, be determined in the judicial review proceedings.
[34] For present purposes it makes no difference which interpretation is correct. As Gordon J explained to Mr Tomar on 25 May 2021, and as I endeavoured to explain to him during the hearing before me, the issue for present purposes is of narrow scope. It relates to whether the fact that the Judge delivered his decision before Mr Tomar had filed his closing submissions deprived Mr Tomar of advancing an argument that may have affected the Judge’s decision. The first appeal therefore provides Mr Tomar with the opportunity to advance any matters that he would have placed before the Judge in his closing submissions.
Marriage of short duration
[35] Section 2E(1)(a) of the Act provides that a marriage will be one of short duration where it is for a period of less than three years. It may also be for a period of three years or longer where the Court, having regard to all the circumstances of the marriage, considers it just to treat the marriage as one of short duration.
[36] Mr Tomar’s argument on this point is that in other proceedings in the Family Court that relate to the care of their child Ms Tomar has apparently stated that by 2010 she had decided to end her relationship with Mr Tomar. She then endeavoured to leave him several times between 2010 and 2016. The parties were married in August 2008.
Mr Tomar contends the evidence given by his wife in the other proceedings, together with her actions between 2010 and 2016, means the marriage should be regarded as one of short duration.
[37] The Judge did not deal with this issue in either of his decisions so it is necessary to consider whether Mr Tomar raised it as an issue at or before the hearing in the Family Court. On 15 August 2019 counsel for Ms Tomar filed a memorandum setting out the issues to be determined and the steps needed to bring the proceeding to a hearing. The issue of whether the marriage was one of short duration was not included as an issue to be determined. On 22 August 2019 counsel then acting for Mr Tomar filed a memorandum in response. This stated that the issue of whether the marriage was one of short duration was the main issue in dispute, and that it needed to be determined before any other matters were considered. On 2 September 2019 Judge Druce issued a minute in which he directed that a fixture of one day’s duration be allocated. He also observed that “the substantive issues as identified in counsel’s memoranda are noted”. He directed the parties to file and serve memoranda as to agreed facts and issues no later than five working days prior to the fixture.
[38] The Registry subsequently allocated the proceeding a firm fixture on 20 March 2020. On 16 March 2020 counsel for Ms Tomar filed and served a memorandum setting out the issues to be determined at the hearing from Ms Tomar’s perspective. Once again this did not include the issue of whether the marriage was one of short duration.
[39] By this stage Mr Tomar was representing himself. He filed and served a memorandum shortly after receiving the memorandum filed and served by Ms Tomar’s counsel on 16 March 2020. Mr Tomar’s memorandum stated that he opposed and did not agree with the contents of the memorandum filed by Ms Tomar’s counsel. He raised several issues, including his assertion that he had not been served with Ms Tomar’s initial application. In this context he said he had not received a copy of the affidavit of service sworn by the process server who had left the documents with him on 2 February 2018. He suggested that this person would need to be cross-examined at the hearing on 20 March 2020. Mr Tomar did not, however, suggest that the issue
of whether the marriage was one of short duration needed to be determined at the hearing on 20 March 2020.
[40] Furthermore, Mr Tomar did not cross-examine Ms Tomar about this issue. That would have been necessary if it was an issue in dispute. Section 92 of the Evidence Act 2006 imposes duties on a party who cross-examines a witness about significant matters that are in dispute. In such a case the party conducting the cross- examination has a duty to put significant matters in dispute to the witness where the witness can be expected to be able to give evidence about that issue. If Mr Tomar wished the Family Court to consider his argument about the marriage being one of short duration he therefore had a duty to put the facts underpinning his argument to his former wife for her comment. His failure to do so led to two consequences. First, Ms Tomar had no opportunity to refute Mr Tomar’s allegations and to say why they were incorrect. Secondly, it did not alert the Judge to the fact that this was an issue he needed to determine. This, coupled with Mr Tomar’s failure to list the issue as one requiring determination in his memorandum of 16 March 2020, meant the Judge was unaware it was an issue in dispute.
[41] Cross-examination was particularly important in the present case having regard to the nature of the issue in dispute because it was intensely fact specific. In order to determine whether the marriage was one of short duration the Judge would have been required to examine all the circumstances of the marriage between 2008 and 2016. That would have been the only way to determine whether there was substance to Mr Tomar’s assertion that the marriage effectively ended well before the parties finally separated in 2016. It is now too late to rectify the situation because the opportunity for Ms Tomar to comment on Mr Tomar’s assertion has now been lost.
[42] Had there been a credible basis for Mr Tomar’s argument about this issue I may have considered remitting it to the Family Court for further examination. However, such evidence as exists suggests there is no substance to the argument. Outwardly Mr and Ms Tomar appear to all intents and purposes to have remained in a relationship in the nature of marriage between 2010 and 2016. They lived together throughout that period other than for an interlude during 2016 when Ms Tomar left the home for a short period. The only child of the marriage was born on 3 August 2011, well after
Mr Tomar says his wife decided to end the marriage. Nine months later, on 14 May 2012, Mr and Ms Tomar purchased a property in Lorraine Avenue, Mt Albert. This became their family home that they occupied together for the next four years.
[43] In September 2015 they purchased a rental property in Tauranga in their joint names and in the following year they formed a company that purchased another property in Lower Hutt. These transactions plainly suggest the parties continued to live as husband and wife well beyond 2010. There is therefore no evidential basis to suggest the marriage was one of short duration. This ground of appeal fails as a result.
Failure to recognise that three properties were Mr Tomar’s separate property
[44] In the final amended notice of appeal Mr Tomar alleges that three properties were his separate property and contends the Judge was wrong to classify them as relationship property. These were:
(a)the property in which the family lived at 6B Lorraine Avenue, Mt Albert;
(b)a rental property situated at 25B Church Street, Tauranga that the parties purchased on 28 September 2015, and
(c)a property situated at 45 Cambridge Terrace, Lower Hutt that was purchased on 15 March 2016 by PVMT Limited, a company incorporated by Mr and Ms Tomar on 11 February 2016.
[45] The Judge did not deal with this issue in his first decision and I do not see it raised in the substantive affidavits filed by Mr Tomar in the Family Court. It was not referred to in the list of issues filed by Mr Tomar prior to the hearing in the Family Court and he did not raise it during his cross-examination of Ms Tomar at the hearing in the Family Court. I am therefore satisfied these issues were never raised in the Family Court and it is now too late to raise them on appeal.
[46] Mr Tomar’s argument in relation to each property faces considerable evidential difficulties in any event. Mr and Ms Tomar purchased the Lorraine Avenue property
in their joint names for the sum of $410,000. Ms Tomar gave evidence that she contributed the sum of $60,000 from her savings and Mr Tomar paid the sum of
$50,000. The balance of $300,000 came from a bank loan for which they were jointly liable. Mr Tomar did not challenge her on any of these issues.
[47] Furthermore, the parties lived in the property together until they finally separated in 2016. Section 8 of the Act provides that the family home, whenever required, is to be regarded as relationship property. There is therefore no realistic basis on which Mr Tomar could contend the Lorraine Avenue property was his separate property. The evidence was overwhelmingly to the effect that it was relationship property.
[48] Similarly, Mr and Ms Tomar owned the rental property in Tauranga jointly and they were jointly liable for repayment of the mortgage registered against the title. They purchased it in September 2015, more than twelve months before they separated the following year. It therefore fell within the definition of relationship property in s 8 of the Act because they owned it jointly.
[49] The Lower Hutt property was acquired by a company called PVMT Limited (PVMT) on 15 March 2016. Mr and Ms Tomar incorporated PVMT on 11 February 2016. Both Mr and Ms Tomar were shareholders in PVMT and Mr Tomar was the sole director. They were also jointly liable as guarantors of the loan obtained by PVMT to enable it to purchase the property. I am therefore satisfied the Judge was correct to conclude that the shares in PVMT were relationship property, the value of which was to be divided equally between the parties.6 I see no basis on which Mr Tomar can realistically claim that the Lower Hutt property was his separate property.
6 The Judge held that the value of the shares in PVMT Ltd was equal to the current equity in the property that it purchased. He set a formula by which an independent solicitor was to establish that value and Mr Tomar was then to have an opportunity to purchase Ms Tomar’s shares. That process has not yet been completed.
Division of chattels and motor vehicles
[50] The Judge made an order that each party was to retain the items of furniture and chattels in his or her possession as at the date of the judgment.7 He made no monetary adjustment in relation to these. He directed that Mr Tomar was to retain a 2002 BMW motor vehicle having a value of $9,000, and Ms Tomar was to retain a 2000 Suzuki station wagon having a value of $4,000. He ordered Mr Tomar to pay the sum of $2,500 to his wife to compensate her for the difference in value between the two motor vehicles.8
[51] Mr Tomar challenges these decisions on the basis that Ms Tomar took the bulk of the furniture and chattels when she left the family home in December 2016. He says he was only permitted to retain a sofa and a bed. Since that date Ms Tomar has retained the balance of the furniture and chattels, including expensive items of jewellery she had been given by his family. Mr Tomar contends that the furniture had a value of approximately $40,000 and that he should receive a credit for one-half of this sum.
[52] Mr Tomar says his wife unilaterally elected to retain the Suzuki motor vehicle when he would have preferred to keep it. He does not consider there should have been any adjustment to reflect the difference in value between the two motor vehicles.
Chattels
[53] Mr Tomar’s assertion that the chattels had a value of $40,000 is based on an estimate of the value of household furniture and chattels given by Ms Tomar when she completed an application for mortgage finance to a bank on 14 February 2016. The application sought finance to enable PVMT to purchase the Lower Hutt property.
[54] I accept Ms Hoult’s submission that the value ascribed to household furniture and chattels in an application for mortgage finance is unlikely to be a realistic guide to their current market value. Such an estimate is likely to relate to replacement value rather than market value, which is inevitably considerably less. The reality is that used
7 Tomar v Tomar, above n 1,at [48].
8 At [46]-[47].
household furniture and chattels have very little value if sold on the open market. Furthermore, it is likely that Ms Tomar needed to take possession of some of the furniture and chattels so she could properly care for the parties’ child.
[55] I also accept Ms Hoult’s submission that the jewellery gifted to Ms Tomar by Mr Tomar’s family remains her separate property because it was a gift to her and not to her and Mr Tomar jointly. The Act excludes gifts from being relationship property unless they satisfy specified criteria, none of which are present in relation to the jewellery.9
[56] Even taking these factors into account, however, I consider the Judge ought to have made a modest monetary adjustment to reflect the fact that Ms Tomar has retained the bulk of the household furniture and chattels. I consider this can be addressed by quashing the order requiring Mr Tomar to account to Ms Tomar for the difference in value between their respective motor vehicles.
Did Ms Tomar dispose of money during the marriage ?
[57] Mr Tomar contends his former wife diverted moneys earned during the marriage into no less than ten separate bank accounts that she opened. Mr Tomar also contends she transferred funds to her cousin, AK.
[58] These allegations need to be viewed against the evidence given by Ms Tomar in the Family Court. This was to the effect that, until approximately 2010, her income was paid into a joint bank account. After 2010, Ms Tomar operated three separate accounts in her sole name. She annexed copies of bank statements for these accounts to an affidavit she filed in the Family Court. These showed that, as at the date of separation, the accounts had credit balances of $3691.21, $6557.55 and $706.64 respectively.
[59] As Ms Hoult points out, Ms Tomar also provided the Court with copies of her tax statements for the period from 1 April 2011 to 31 March 2017. These set out the income she earned during that period.
9 Property (Relationships) Act 1976, s 10(1)(a).
[60] During the hearing in the Family Court Ms Tomar said she opened several term deposit accounts during the marriage to enable herself and her husband to save money. As each term deposit matured she reinvested the money in a new term deposit. Each of these transactions required a new account to be opened for the re-investment of funds. Ms Tomar denied diverting funds to any account that was not opened for the benefit of herself and Mr Tomar.
[61] Ms Tomar also deposed in an affidavit sworn on 12 November 2018 that she only transferred funds to AK on one occasion during the marriage. She said she transferred the sum of $10,000 from a term deposit account to AK on 8 September 2009 to enable him to pay his fees as an international student. AK repaid the sum of
$4,000 on 23 October 2009. Ms Tomar said she subsequently told him not to repay the balance because Mr Tomar had already received a significant sum by way of commission when AK obtained admission to an educational course using Mr Tomar’s business. Mr Tomar was a consultant who provided assistance and advice to overseas students who wished to travel to New Zealand for educational purposes.
[62] Having read the evidence I see no factual basis for Mr Tomar’s contention that Ms Tomar wrongly diverted funds away from accounts opened for the benefit of both herself and her husband. This ground of appeal fails as a result.
[63] During the hearing before me it became evident, however, that the Judge failed to give Mr Tomar credit for his half-share of the balances held in the three bank accounts in Ms Tomar’s name that were still in existence at the date of separation. These totalled $10,955.40. Ms Hoult acknowledged that one-half of that amount, or
$5,477, needs to be credited against the amount Mr Tomar is required to pay Ms Tomar to compensate her for income he received from his business activities during the marriage but which he did not share with her.10
10 See [66]-[75].
Should Mr Tomar receive credit for any interest held by Ms Tomar in her current residence?
[64] Ms Tomar is now living with her partner in a residence in Hamilton. Mr Tomar believes this was purchased using funds derived during the marriage and that he should therefore receive a credit for one-half of any interest held by Ms Tomar in this property. Mr Tomar also seeks to receive credit for one-half the value of any property that Ms Tomar has purchased overseas.
[65] These issues were not referred to in the evidence given in the Family Court. It is therefore not surprising that the Judge did not deal with them in his decision. There is simply no evidence to support Mr Tomar’s claim that Ms Tomar has contributed to the purchase of any other property either in New Zealand or overseas. This ground of appeal fails as a result.
The consequence of the approach taken on the first appeal
[66] The most significant practical consequence of the approach I have taken to the first appeal flows from the fact that, unlike earlier versions, the amended notice of appeal in its final form differs significantly from earlier versions in one respect. It does not challenge an order that the Judge made requiring Mr Tomar to pay his former wife the sum of $216,666.66 to compensate her for income he earned during the marriage but which he had failed to disclose. This issue occupied the bulk of Mr Tomar’s cross-examination of Ms Tomar at the hearing in the Family Court.
[67] The issue arose because Mr Tomar failed to comply with the order for discovery and notice to produce documents relating to the consultancy business he operated during the marriage. In her affidavits filed in the Family Court and in cross- examination Ms Tomar gave a significant amount of evidence about this issue. She said that whilst they were living in India Mr Tomar and his father operated a business that gave advice to students who wished to travel to New Zealand for educational purposes. When his father died in 2010 Mr Tomar continued to operate the business on his own.
[68] Ms Tomar explained that when she and Mr Tomar moved to New Zealand following their marriage Mr Tomar continued to operate the business remotely from New Zealand. This obliged him to employ a person to ostensibly run the office in India as he could not operate the business in his own right from New Zealand without a licence. Once Mr Tomar obtained the appropriate licence he incorporated a company in New Zealand, Apple Education and Immigration Service Ltd, and operated the business from New Zealand through that entity. Until that occurred, however, the business operated in India with Mr Tomar controlling it from New Zealand.
[69] Ms Tomar has always believed that Mr Tomar derived significant income from the business and sought to obtain details of this through the discovery process. When this failed to produce results she served the notice to produce documents on him in August 2019. Mr Tomar also failed to comply with the notice. This meant that, when the hearing commenced in the Family Court, Mr Tomar had not produced any documents or evidence regarding the income he had earned through his consultancy business.
[70] This changed during Mr Tomar’s cross-examination of Ms Tomar in the Family Court. For the first time he produced copies of bank statements that appeared to show income he had derived from his business activities. These showed deposits being made to one account and funds then being transferred to another. Ms Tomar could not respond to questions Mr Tomar put to her about these because she and her counsel had never seen the bank statements before. In addition, Ms Tomar had no personal knowledge of the transactions shown in the bank statements. She was therefore unable to give any meaningful evidence about them.
[71] When Mr Tomar gave evidence he did not attempt to analyse or explain the transactions shown in the two sets of bank statements. This meant the Judge was left with no evidence as to what they meant. He therefore adopted submissions made by Ms Tomar’s counsel regarding the approach he should take to income earned by Mr Tomar during the marriage. The Judge did not articulate this in his decision but they were contained in Ms Hoult’s closing submissions to the Family Court.11 These
11 At [49]-[53].
pointed out that Ms Tomar had explained in her affidavits that she believed Mr Tomar would have earned at least $50,000 per annum during the marriage. This meant he had amassed total earnings of $433,333 during that period. One half of this sum was
$216,666.66. The Judge accepted Ms Hoult’s submission that Mr Tomar should pay his former wife that sum to compensate her for the income he had earned during the marriage but not disclosed to her.
[72] Mr Tomar clearly feels aggrieved regarding the approach the Judge took in relation to this issue. However, three factors persuade me that Mr Tomar will not suffer an injustice by failing to include this issue as a ground of appeal in his final amended notice of appeal. The first is that Mr Tomar is the author of his own misfortune. He should have disclosed the bank statements to Ms Tomar well before the hearing in the Family Court if he wished to rely upon them. He should also have provided an affidavit explaining the transactions shown in the bank statements. Without that evidence the Judge had no means of making a reasoned assessment as to what they showed.
[73] Secondly, the bank statements show business income derived during the 2014, 2015 and 2016 years. By my calculations this amounted to annual income of $48,948,
$80,350 and $5,034 respectively excluding interest. This amounts to an average annual income of $44,777, a figure not too distant from that chosen by the Judge. I acknowledge that this does not take into account business expenses but there is no means of determining these without evidence from Mr Tomar.
[74] Thirdly, I am satisfied Mr Tomar will receive a significant financial benefit at Ms Tomar’s expense from another order made by the Judge. This related to the property in Lower Hutt that the parties purchased in March 2016 using the company PVMT.12 Mr Tomar wishes to retain the shares in PVMT so that he also retains the Lower Hutt property. The Judge concluded that the value of the company was effectively equivalent to the net value of the property because it had no other assets.13 He therefore made an order that the parties were to share in the cost of obtaining a valuation of the property as at the date of hearing. An independent solicitor was then
12 Described above at [49].
13 Tomar v Tomar, above n 1, at [34].
to use the valuation to fix the net value of the property. This was to be done by deducting the amount owing under the mortgage or the sum of $250,000, whichever was the greater, from the value of the property as ascertained by the valuation.14 Mr Tomar was then to pay Ms Tomar one-half of that sum. As I understand the position Ms Tomar subsequently obtained a valuation of the property, presumably at her own expense, but the independent solicitor has yet to fix a value for it using the formula the Judge prescribed.
[75] The problem Ms Tomar now faces is that the value ascribed to the property in the valuation is well below the current market value of the property. Ms Tomar will not share in the benefit of the property’s increased value even though Mr Tomar has not yet paid her for her interest in PVMT. Mr Tomar therefore stands to receive a considerable financial benefit at Ms Tomar’s expense from this aspect of the Judge’s decision. In my view this more than offsets any disadvantage he may suffer by failing to raise the issue relating to his business income as a ground of appeal.
Summary
[76] The first appeal is dismissed and the orders made by the Judge are confirmed other than in two respects. First, the sum that Mr Tomar is to pay Ms Tomar for business income derived but not disclosed ($216,666.66) is to be reduced by the sum of $5,477 to reflect Mr Tomar’s interest in the credit balances of Ms Tomar’s bank accounts as at the date of separation.15 Secondly, Mr Tomar is not required to pay Ms Tomar the sum of $2,500 to compensate her for the difference in value of the motor vehicles each has retained in terms of the Judge’s decision.16
B The second appeal
[77] Following delivery of the first decision Mr Tomar filed six interlocutory applications. These were:
14 The Judge explained that this was to compensate Ms Tomar for the fact that Mr Tomar declined an offer by her to purchase the property when the sum of approximately $250,000 was owing under the mortgage.
15 See [63].
16 See [56].
(a)An application for an order rescinding the order for particular discovery made against Mr Tomar on 8 August 2018.
(b)An application for an order discharging or rescinding the first decision.
(c)An application for an order striking out an interlocutory application Ms Tomar had filed on 29 December 2020 seeking an order striking out Mr Tomar’s application for an order rescinding or discharging the Judge’s first decision.
(d)An application to vary directions given in a minute issued by Judge Burns on 20 March 2020.
(e)An application for costs against Ms Tomar.
(f)An application for an order varying the bundle of documents used at the hearing on 20 March 2020.
[78] Judge Burns directed that all the applications were to be heard together on 19 May 2021. Having heard argument from both parties he dismissed them in a decision issued the following day.17
Application for order rescinding order for discovery made on 8 August 2019
[79] I do not need to traverse the history of this application as described by the Judge or the reasons he gave for declining this application.18 This is because, regardless of whether the order for discovery was properly made, it was subsequently superseded by the notice to produce documents that Ms Tomar served on Mr Tomar in August 2019. Mr Tomar cannot challenge that document and it required him to produce the same documents that were the subject of the order for discovery.
[80] Secondly, the bank statements that Mr Tomar produced for the first time when cross-examining Ms Tomar during the hearing in the Family Court confirm he had the
17 Tomar v Tomar, above n 2.
18 At [10]-[12].
ability to obtain documents that disclosed his business income. He told me he had obtained these from his bank in January 2020. This meant he had ample time to file and serve a further affidavit in the Family Court annexing the bank statements and providing an analysis of the transactions they depicted.
Application for order rescinding or discharging the first decision
[81] Mr Tomar applied for an order rescinding or discharging the first decision. The application was based on Mr Tomar’s concern that the Judge had delivered his decision before Mr Tomar had filed his closing submissions.
[82] As the Judge correctly pointed out,19 he was functus officio once he delivered his first decision. Once a Judge delivers a decision there is no ability to recall or rescind it other than in very limited circumstances, none of which applied in the present case.20 Once a decision has been delivered it stands or falls on its merits and can only be corrected on appeal. This meant that, if Mr Tomar disagreed with any aspect of the first decision, he was required to appeal to this Court as he has now done. There was plainly no jurisdiction for the Judge to rescind or discharge his first decision. He therefore had no option but to dismiss Mr Tomar’s application.
Application for order striking out Ms Tomar’s application
[83] Ms Tomar had filed an application dated 15 December 2020 seeking an order striking out Mr Tomar’s application for an order discharging or rescinding the order for discovery made on 8 August 2019. Mr Tomar responded by filing an application to strike out Ms Tomar’s application. The Judge dismissed Mr Tomar’s application21 and granted Ms Tomar’s application.22
[84] There was no need for the Judge to grant Ms Tomar’s application because he had already dismissed Mr Tomar’s application for an order rescinding or discharging the order for discovery made on 8 August 2019. There was therefore arguably nothing
19 At [14].
20 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28].
21 Tomar v Tomar, above n 2, at [12].
22 At [16].
left to strike out. However, that issue is of academic interest only given my earlier conclusion that the Judge was correct to dismiss Mr Tomar’s application for an order rescinding or discharging the order for discovery.
Application for order varying directions made in the minute issued by Judge Burns on 20 March 2020
[85] On 20 March 2020 Judge Burns issued a minute declining an application by Mr Tomar for an adjournment of the hearing scheduled to commence that day. The minute records that Mr Tomar sought an adjournment because his former counsel had failed to keep him informed about what was happening in the Family Court proceeding. He therefore sought further time to prepare for the hearing. The minute records that Ms Hoult “strongly opposed” any adjournment because her client had been waiting a very long time for the hearing. The Judge dismissed the application for the following reasons:23
[8] I have to say that on looking at the file, which I have done prior to the hearing, the issues between the parties appear to be relatively straightforward. There is in place an order for sale.24 Essentially, once the property is sold there needs to be adjustment between the parties.
[9] The primary issue today is what adjustments (if any) need to be made between the parties under s 18(b) and any ancillary orders in order to get these parties to have a clean break. They have been apart for some time. I am aware that there is also litigation in the Hamilton Family Court in relation to their son and there has been previously litigation under the Family Violence Act 2018.
[10] I am not prepared to adjourn the hearing today. I would regard that as highly prejudicial to the applicant. Mr Tomar will be able to give evidence and answer questions from Ms Hoult and will no doubt have a full opportunity to give his evidence. If the situation was complex and involved experts and difficult issues of law I could be more persuaded to grant the adjournment but from the Court’s point of view the issues are very straight forward and essentially the major problem appears to be the non-implementation of Court orders and non-compliance with directions by the respondent. In those circumstances, with that background, it would be wrong to adjourn the proceedings today and I direct the hearing to proceed.
[86] One of the most obvious grounds on which Mr Tomar may have sought an adjournment was to enable him to place his bank statements before the Court along
23 Tomar v Tomar, above n 2.
24 Another Judge had earlier made an order requiring the family home to be sold. Mr Tomar had appealed against this order but ultimately discontinued his appeal in February 2020.
with an explanation of the transactions they depicted. However, he did not raise this as an issue in the memorandum he filed in the Family Court in support of his application for an adjournment. Nor did he explain what further steps he needed to take to prepare for the hearing. Instead the memorandum was confined to a lengthy and garbled summary of alleged shortcomings on the part of his former counsel. It is therefore no surprise that the Judge elected to proceed with the hearing.
[87] The present appeal represents Mr Tomar’s opportunity to describe how he was unfairly prejudiced by the Judge’s decision to refuse his application for an adjournment. However, he has not taken advantage of the opportunity. He has not identified what he would have done if he had been given further time to prepare for the hearing in the Family Court. He has therefore not established this ground of appeal.
Application for costs against Ms Tomar
[88] It is not clear why Mr Tomar believed he was entitled to an order for costs against Ms Tomar. As the Judge pointed out,25 Mr Tomar was not represented by counsel when he filed the application for costs and he had not retained counsel for some considerable period before that. It is well established that, other than in exceptional circumstances. a litigant in person is not entitled to an award of costs. Such awards are intended to compensate the recipient for costs actually incurred in obtaining legal representation.26
[89] Furthermore, costs are generally awarded to the successful party, either at trial or with respect to an interlocutory application. This reflects the principle that the unsuccessful party should be required to contribute to the costs of the successful party.27 I have been unable to locate any interlocutory application or event in which Mr Tomar was the successful party and Ms Tomar was the unsuccessful party.
[90]This ground of appeal fails as a result.
25 At [16].
26 Commissioner of Inland Revenue v Chesterfield Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500 at [162].
27 District Court Rules 2014, r 14.2(1)(a).
Application for order varying the bundle of documents used at the hearing on 20 March 2020
[91] Prior to the hearing on 20 March 2020 Ms Hoult prepared two volumes of documents for use during the hearing as the common bundle.28 In his submissions filed in support of the appeal Mr Tomar alleges there has been a “high level of irregularity and potential fraud” in the common bundle. In support of this submission Mr Tomar refers to an affidavit of service that was included within the bundle.29 He says that this was never filed in the Family Court or served upon him. He says this constitutes a serious irregularity that requires the first decision to be quashed.
[92] This ground of appeal replicates in large part one of the grounds Mr Tomar advanced in support of the first appeal. It relates to the affidavit of service filed following service of Ms Tomar’s initial application upon Mr Tomar on 2 February 2018. The allegation in the present appeal is slightly enlarged, however, because Mr Tomar also says that the affidavit of service was never filed in the Family Court. He did not make that allegation in the first appeal.
[93] I do not know whether Ms Tomar’s solicitors filed the affidavit of service in the Family Court. There was certainly no need for them to do so because Mr Tomar took steps to defend the proceeding after being served on 2 February 2018. Had I considered it to raise an issue of importance I would have arranged for the Family Court to transmit its file to this Court so that I could make that determination. I am satisfied, however, for the reasons already given30 that no issue of importance arises. Neither the circumstances in which Mr Tomar was served with the proceeding nor the affidavit of service, whether filed or not, had any bearing on the outcome in this case.
[94]There is therefore no merit in this ground of appeal.
Result
[95]The appeal in CIV 2021-4040-976 is dismissed.
28 I did not have these when I heard the appeals but the Registry subsequently located them for me.
29 The surname of the process server identified by Mr Tomar in his submissions differs from that in the affidavit of service contained in the bundle of documents.
30 At [22]-[26].
Costs
[96] Ms Tomar has been the successful party on all major issues in in both appeals. Such success as Mr Tomar has enjoyed is the result of issues raised by me during the hearing and is not due to any effort on his part. My provisional view is that Ms Tomar is therefore entitled to a single award of costs on a category 2B basis for the hearing and interlocutory steps taken in each appeal. Ms Tomar is also entitled to an award of costs for filing a second set of submissions in the first appeal. This was rendered necessary after Gordon J adjourned the fixture on 25 May 2021 and granted Mr Tomar leave to amend his notice of appeal
[97] I am aware that Ms Hoult may wish to seek increased costs on Ms Tomar’s behalf. I do not encourage that because my tentative view is that grounds do not exist for such an award. A further dispute about costs will also serve to lengthen the appeal process and put Ms Tomar to further expense, much of which is likely not to be recoverable from Mr Tomar.
[98] If Ms Hoult wishes to apply for increased costs on Ms Tomar’s behalf she should file and serve a memorandum of not more than five pages in length no later than 24 September 2021 setting out the basis for the application. Mr Tomar will then have 14 days within which to respond. Reply submissions should not be required. I will then determine the issue of costs on the papers.
Lang J
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